Tuesday, September 11, 2018
I've been reading articles for several weeks about a "troubled" nursing home in Connecticut where staff members were reportedly being paid late, and not receiving payments on related benefit claims (including health care and pensions).
The reports sound unusually mysterious, with indications of an executive's "loan" to a related charity from operating reserves. Suddenly more than $4 million was apparently restored to a key pension account:
As News 12 has reported, federal agents raided the center back in May. When the raid happened, that account was down to $800. For years, workers have complained about missing retirement money. In a lawsuit, the Labor Department claims the facility's owner illegally funneled their money into his own private charity.
Now, according to new court documents, the $4 million was unexpectedly deposited into the pension account last week. It's unclear where the money came from, and even the bankruptcy trustee running the facility was unsure.
"I don't truly know the source, but I do know that there's $4.1 million in this bank," bankruptcy trustee Jon Newton said at a court hearing yesterday.
But in a recent court hearing, owner Chaim Stern's lawyer said the money "was meant to represent the $3.6 million transferred from the (retirement) plan to Em Kol Chai." That's the charity authorities say Stern controls.
Workers may not get as much of that money as they think. Bridgeport Health Care has a long list of creditors, and they could potentially get a share.
News 12 reported back in July that part of the facility, called Bridgeport Manor, is shutting down. Lawyers say they hope to wrap that process up within a month.
September 11, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare | Permalink | Comments (0)
Friday, August 31, 2018
Professors Adam Hofri-Winogradow (Hebrew University of Jerusalem) and Richard Kaplan (University of Illinois) have an interesting new article, addressing how different countries analyze property transfers to caregivers. They recognize that, broadly speaking, reviewing authorities tend to treat family members differently than they treat professional caregivers when it comes to questions about undue influence or other theories that may invalidate a transfer as unfair. Further, they recognize that policies may differ for live-in caregivers versus hourly helpers. Also, on a comparative basis, countries may differ on how a governmental unit provides employment-based public benefits for home carers, thus perhaps influencing how family members view pre- and post-death gifts to caregivers.
From the abstract:
In this Article, we examine how the United States, Israel, and the United Kingdom approach property transfers to caregivers. The United States authorizes the payment of public benefits to family caregivers only in very restricted situations. The U.K. provides modest public benefits to many family caregivers. Israel incentivizes the employment of non-family caregivers but will pay family caregivers indirectly when assistance from non-relatives is unavailable. All three jurisdictions rely on family caregivers working for free or being compensated by the care recipients. We examine the advantages and disadvantages of several approaches to compensating family caregivers, including bequests from the care recipient, public benefits, tax incentives, private salaries paid by the care recipient, and claims against the recipient's estate. We conclude that while the provision of public benefits to family caregivers clearly needs to be increased, at least in the United States, a model funded exclusively by public money is probably impossible.
For more, read Property Transfers to Caregivers: A Comparative Analysis, published in June by the Iowa Law Review.
Thursday, August 2, 2018
We blogged last week about the July 10, 2018 executive order that exempted the hiring of ALJs from the competitive process used up until then. NPR and the Washington Post did stories about the impact of the executive order on the ALJ hiring process, offering to some extent, two competing views of the outcome.
In Trump moves to shield administrative law judge decisions in wake of high court ruling explains the process typically used by federal agencies: "[w]hile individual agencies generally post their job vacancies and then assess and select candidates, they hire ALJs from a central list of applicants the Office of Personnel Management deems qualified." Referencing the recent Supreme Court decision that held that an ALJ for the SEC was not correctly appointed, the ALJ "therefore was not authorized to decide in the case, which involved a penalty against an investment adviser. [Further] [t]hat decision opens the door to similar challenges across all agencies since their ALJs were selected in the same way, often by a lower-level official who had relatively little choice of candidates from the list, said James Sherk, special assistant to the president for domestic policy" who indicated in an interview that a large number of challenges on that point have been filed and that the executive order will hopefully "protect agencies against challenges to the legitimacy of their ALJs." The article also discusses the potential for politically-based hiring decisions. It also notes that certain hearing offiers are called ALJs; but the executive order won't "apply to hiring of immigration judges or other agency-level hearing officers who in some contexts are generically referred to as administrative law judges...."
NPR's story, Trump Changes How Federal Agency In-House Judges Are Hired notes that the ALJs covered include Medicare. Focusing more on the potential political ramifications of the executive order which basically makes the ALJs political appointees, the NPR story quotes "the president of the American Constitution Society [who] in a statement specifically pointed to possible repercussions with the Social Security Administration. 'Administrative law judges handle Social Security disability cases. This administration is on record as wanting to lessen benefits. It's likely that a political ALJ appointed by this administration would rule against the beneficiaries and deny claims.'"
Wednesday, July 25, 2018
A recent reader asked about what happened in the Sears Methodist Retirement System bankruptcy case in Texas for residents who had paid a "refundable" entry fee before the company filed for reorganization under Chapter 11 of the Bankruptcy Code. In addition to sharing some legal documents in a recent update, I promised readers to reach out to contacts to get more of the story. I heard from a long-time correspondent, Jennifer Young. Here is her important story:
I am Jennifer Young. Prior to retirement I worked in Human Resources. I am currently a resident of a CCRC in North Carolina. I moved to North Carolina in 2015 after an unsatisfactory experience in a CCRC in Texas.
Here is what happened to me in Texas. I was a resident of a CCRC, one of the Sears Methodist Retirement Service (SMRS) communities, operated under nonprofit tax rules. There were 5 CCRC operations in the SMRS system, along with 2 subsidized senior housing complexes, an Assisted Living facility, and the management of 3 state veterans’ homes. Eleven communities in all. I managed to move into my CCRC just two years before SMRS filed for protection in bankruptcy court under Chapter 11.
My community was a Type C, 90% refund contract. Our CCRC was brand new, with the entrance fees of those moving in pledged to debt service for the construction loan. SMRS’ decision to break ground on the newest of their CCRCs in 2009 (in the middle of a recession) should have been my first red flag, but I was too wrapped up in the process of choosing a desirable lot and influencing the construction of our future cottage in my own community to think about the long-term implications of that management decision.
As I learned the hard way, the unsecured status of entrance fees meant that residents were “unsecured creditors” in the bankruptcy process; hence, I was advised to apply for a seat on the court’s Unsecured Creditor Committee. I did and served on this committee from the summer of 2014 until it was dissolved in the spring of 2015. Per Bankruptcy Court procedures, these Committees routinely hire a law firm (with fees paid by the bankrupt estate). Residents were lumped in with all of the other unsecured creditors. Meetings were conducted telephonically because committee members were quite scattered geographically. For example, one vendor of therapy services wasn’t headquartered in Texas.
I don’t remember whether the judge issued a formal order about the pre-petition refundable entrance fees, but I know all parties did not want residents to be financially harmed. They were worried about the very negative impact of residents losing their entrance fees, as happened during the 2009 bankruptcy of a Pittsburgh, Pennsylvania CCRC, Covenant of South Hills. A second such outcome, especially for a large, multi-facility community, would have been devastating to the continuing care industry as a whole.
In the Texas bankruptcy process, the court set up an interim manager (not from SMRS) who worked closely with attorneys from all parties in reviewing the offers from potential new owners. As a member of the above-mentioned Committee, I would hear that new owners MUST be willing to accept the current Residency Agreements (contracts). So “applications” to buy were screened in that regard; however, the Committee and the open court procedures did not reveal details regarding all the letters of intent that were submitted. They may have been buried in tons of documents, but I don’t know for sure.
There was an announcement in the fall of 2014 that another Texas non-profit wanted the CCRCs, and all parties seemed content with this prospect. However, that fell through, as this potential new owner’s Board put the kabosh on the deal. To simplify the complexities of the process, let’s just say that for the communities that were not “picked off” during the fall months, there was an auction in January 2015. In contrast, SMRS’ Assisted Living facility was purchased without an auction and its Subsidized Housing facilities went back to HUD.
Tuesday, July 24, 2018
Unusual Story Involving Allegations of NH Medicare Fraud and Allegations of Bribery of University Officials
From the publication Inside Higher Ed, a somewhat amazing compilation of allegations. The July 23 , 2018 article begins:
Philip Esformes is a Florida business executive facing numerous federal charges of Medicare fraud related to the nursing homes and assisted-living centers he has owned. The case took an unusual turn Thursday when the federal government accused Esformes of bribing a basketball coach at the University of Pennsylvania to help get Esformes's son admitted to Penn.
The indictment says that Esformes gave $74,000 in cash, plus additional perks such as limo services and rides in private jets, to a basketball coach who then placed Esformes's son on the list of "recruited basketball players," greatly enhancing the son's chances of being admitted. The coach is not identified by name in the indictment and was not charged with anything. Nor was Penn named. But prosecutors in court acknowledged that Penn is the university in question. The coach is Jerome Allen, who led the Penn program for six years and is now an assistant coach of the Boston Celtics.
Esformes is in jail, but his lawyer said he would dispute the new bribery charges. The lawyer has acknowledged that payments were made by Esformes to Allen to help Morris Esformes, the son, get better at basketball. But that answer may be complicated for Penn, given that such payments may violate National Collegiate Athletic Association rules. Morris Esformes, who played basketball in high school, did enroll at Penn and is currently a rising senior. He has never played on the basketball team there.
Beyond the case against Esformes, the indictment draws attention to the extreme advantage that athletes have in the admissions process -- not just at universities known for winning national championships, but at elite academic institutions that are highly competitive in admissions. . . .
For more, read Indictment Alleges Bribery in Admissions at Penn. My thanks to colleague Laurel Terry for sending this article our way.
Monday, July 23, 2018
Ugh, identity theft. It's just awful. Too many people have their identities stolen and the thieves use the information to file false tax returns. Is the IRS doing enough to protect taxpayers? The GAO recently released a report analyzing the actions of the IRS and making recommendations. Identity Theft: IRS Needs to Strengthen Taxpayer Authentication Efforts provides 11 recommendations from the GAO, revolving around identity authentication. Recommendations include policies for undertaking risk assessments through a variety of mediums, since taxpayers don't use the same communications method to contact the IRS, examine procedures and collect data. The full report is available here. The landing page also offers highlights as well as a podcast. And here's a bonus recommendation-whatever safeguards the IRS uses for authentication, how about making the reporting process as easy as possible for the victims? Just a thought....
Friday, July 20, 2018
The President signed an Executive Order on July 10, 2018. Executive Order Excepting Administrative Law Judges from the Competitive Service references the recent Supreme Court decision Lucia v. Securities and Exchange Commission.
The Executive Order contains this explanation:
Previously, appointments to the position of ALJ have been made through competitive examination and competitive service selection procedures. The role of ALJs, however, has increased over time and ALJ decisions have, with increasing frequency, become the final word of the agencies they serve. Given this expanding responsibility for important agency adjudications, and as recognized by the Supreme Court in Lucia, at least some ‑‑ and perhaps all ‑‑ ALJs are “Officers of the United States” and thus subject to the Constitution’s Appointments Clause, which governs who may appoint such officials.
As evident from recent litigation, Lucia may also raise questions about the method of appointing ALJs, including whether competitive examination and competitive service selection procedures are compatible with the discretion an agency head must possess under the Appointments Clause in selecting ALJs. Regardless of whether those procedures would violate the Appointments Clause as applied to certain ALJs, there are sound policy reasons to take steps to eliminate doubt regarding the constitutionality of the method of appointing officials who discharge such significant duties and exercise such significant discretion.
The executive order, as noted in its title, makes "an exception to the competitive hiring rules and examinations for the position of ALJ" due to "conditions of good administration." The Executive Order amends 5 C.F.R. 6.2, 6.3(b), 6.4 and 6.8. To read more, click here.
Sunday, July 15, 2018
Over the weekend, a reader asked about the ultimate outcome of a Chapter 11 Bankruptcy reorganization, involving Sears Methodist Retirement System's CCRC properties in Texas, that we reported on back in 2014. The specific question was "what happened to the refundable entrance fees?"
The bankruptcy court approved escrow and repayment terms of refundable fees for "certain" residents as part of a proposed reorganization plan, with the purchaser(s) of one or all of the 8 involved CCRCs having the option of "assuming" or reaffirming resident agreements; but I need to research more to find out the ultimate outcome, once the dust settled. I've reached out to a few folks to see if there was a final accounting.
In picking up the research on the Sears Methodist case, that reminded me I had not reported in this blog on another CCRC bankruptcy court proceeding, filed as a reorganization under Chapter 11 in late 2015 involving what was then known as Westchester Meadows CCRC in New York.
The August 23, 2016 opinion for In re HHH Choices Health Plan, LLC is interesting, thoughtful, and remarkably accessible for nonlawyers. The issues addressed carefully include:
- Where the debtor in the Chapter 11 proceeding is a nonprofit organization, what rules apply for possible for-profit and nonprofit bidders? For example, could state law governing and limiting transfers of assets of a nonprofit organization apply? The Court concludes that although a new operator would need to comply with state laws (such as the Department of Health's licensing rules), the Bankruptcy Code controls bidding and sale of a bankrupt debtor's assets.
- What standards apply if one bidder, for a lower price, would continue operations as a nonprofit, while the other bidder, for a higher price (and thus more attractive to unsecured creditors), would convert to for-profit operations? Here, the Court observes that New York state law makes it "clear that price alone is not determinative, and that fulfilling the corporate mission can be decisive if creditors are all being paid in full." However, that rule was "clear" only if all the debtor's creditors would be fully paid, which would not be the outcome here. After careful consideration of case precedent, the Court concludes it can confirm a lower-priced sale of the assets, where the buyer satisfies certain standards and is better aligned with the charitable mission of the operation, including in this instance protection of the interests older residents.
The Court's concludes:
July 15, 2018 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Thursday, June 28, 2018
Karen Vaughn, a woman living with quadriplegia in her own apartment for some 4o years, was held against her will in a care facility after hospitalization for a temporary illness. She wanted to go home. The state argued it could no longer find a home care agency that could provide the level of services Ms. Vaughn needed following a tracheostomy in 2012.
Ms. Vaughn's case gave a federal district judge in Indiana the opportunity to revisit the Supreme Court's landmark Olmstead decision from 1999. In ruling on cross motions for summary judgment, the court rejected the state's arguments as based on complexity in reimbursement rates, not availability of appropriate care providers. Judge Jane Magnus-Stinson observed, in ruling in favor of Ms. Vaughn, that
The undisputed medical evidence establishes that at or near the time of the filing of this Complaint, Ms. Vaughn’s physicians believed that she could and should be cared for at home—both because home healthcare is medically safer and socially preferable for her, and because Ms. Vaughn desires to be at home. . . . That support has continued throughout the pendency of this litigation, through at least April of 2018 when Dr. Trambaugh was deposed. Based on the evidence before this Court, it concludes as a matter of law that Ms. Vaughn has established that treatment professionals have determined that the treatment she requests—home healthcare—is appropriate.
[State] Defendants' own administrative choices—namely, the restrictions they have imposed on Ms. Vaughn’s home healthcare provision pursuant to their Medicaid Policy Manual—have resulted in their inability to find a caregiver, or combination of caregivers, who can provide Ms. Vaughn’s care in a home-based setting. It may be the case that other factors, such as the nursing shortage or inadequate reimbursement rates, contribute to or exacerbate the difficulty in finding a provider. But, at a minimum, Ms. Vaughn has established that Defendants' administrative choices, in addition to their denials of her reasonable accommodation requests, have resulted in her remaining institutionalized.
June 28, 2018 in Current Affairs, Discrimination, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, Social Security | Permalink | Comments (0)
Wednesday, June 27, 2018
Mark your calendars for a free webinar on Financial Exploitation and Medicare Fraud. The National Center on Law & Elder Rights will be offering this webinar on Wednesday, July 18, 2018 from 2-3 edt. Here's info about the webinar
Medicare fraud hurts individuals and is harmful to the Medicare Trust Fund. The Medicare Trust fund loses between $60 and $90 billion dollars every year to fraud, waste and abuse. Individuals can lose access to Medicare services because their identity has been misappropriated by someone else. Law and aging advocates play an important role in helping older adults prevent, detect, and report Medicare fraud and abuse.
In this free webinar, Financial Exploitation and Medicare Fraud, California’s Senior Medicare Patrol will teach advocates how to identify potential Medicare scams and report fraud and abuse to the Senior Medicare Patrol. Justice in Aging will highlight potential exploitive Medicare practices and outlines strategies to help prevent exploitation.
To register, click here
June 27, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare, Webinars | Permalink | Comments (0)
Monday, June 25, 2018
For academics, this decision could be relevant to many courses, including estate planning, family law, property law, and contract law, and, of course, constitutional law. Did a state divorce law, potentially effectuating revocation of a former wife as the named beneficiary of her former husband's life insurance policy, conflict with the Contracts Clause of the U.S. Constitution? The case has drawn attention in part because it offers an "early look" at analysis rendered by President Trump nominee Justice Gorsuch, in his lone dissent.
Naomi is also interested in the dissent. She writes in part:
Rather than critique Justice Gorsuch’s interpretation of the Contracts Clause, I want to focus on another aspect of his dissent: he twice (approvingly) cites to a brief filed by more than a dozen women’s groups supporting Kaye Melin (the majority does not mention this issue at all).
It is important to acknowledge that, while virtually all states provide for revocation of beneficiary provisions in wills in favor of an ex-spouse, only about half the states (and the Uniform Probate Code) have extended this revocation to nonprobate assets, such as life insurance policies. There is a policy debate among states about whether automatic revocation is a good idea, and Congress does not provide for such automatic revocation in federally regulated nonprobate assets.
In addition, there is little empirical evidence concerning what policyholders actually want or expect will happen upon divorce. Indeed—and here is one of the two contexts in which Gorsuch cited the women’s brief—“[a] sizeable (and maybe growing) number of people do want to keep their former spouses as beneficiaries.” The growth of collaborative divorce, for example, shows that divorce is not necessarily the messy, take-no-prisoners assumption that underlies modern divorce revocation statutes. As Justice Gorsuch noted, citing to a brief filed by the U.S. government in a 2013 case that argued a state divorce revocation statute should be preempted, there may well be legitimate reasons why a decedent did not change a beneficiary designation, ranging from wanting to support the ex-spouse’s care for joint children to feelings of connection. Justice Gorsuch cited the Women’s Law Project brief again in addressing alternatives to the state’s choice. . . .
For Professor Cahn's full analysis, including her interesting conclusion, see Svenn v. Melin: The Retro View of Revocation on Divorce Statutes.
Thursday, June 21, 2018
Kaiser Health News recently reported on efforts by CMS to crack down on what KHN calls "boomerang" hospital admissions. Medicare Takes Aim At Boomerang Hospitalizations Of Nursing Home Patients focuses on the situation where nursing home residents have multiple hospitalizations.
With hospitals pushing patients out the door earlier, nursing homes are deluged with increasingly frail patients. But many homes, with their sometimes-skeletal medical staffing, often fail to handle post-hospital complications — or create new problems by not heeding or receiving accurate hospital and physician instructions.
Patients, caught in the middle, may suffer. One in 5 Medicare patients sent from the hospital to a nursing home boomerang back within 30 days, often for potentially preventable conditions such as dehydration, infections and medication errors, federal records show. Such rehospitalizations occur 27 percent more frequently than for the Medicare population at large.
One solution implemented by CMS, the story explains, has been to penalize hospitals when the resident is readmitted, "in an attempt to curtail premature discharges and to encourage hospitals to refer patients to nursing homes with good track records." In the next few months, CMS will now initiate a program with incentives for nursing homes: "giving nursing homes bonuses or penalties based on their Medicare rehospitalization rates. The goal is to accelerate early signs of progress: The rate of potentially avoidable readmissions dropped to 10.8 percent in 2016 from 12.4 percent in 2011, according to Congress’ Medicare Payment Advisory Commission."
Of course, this doesn't mean that a resident will never be hospitalized but hopefully this will make the process and the care better for residents. The article looks at reasons for the frequent admission problems, noting the causes include ineffective communication between the nursing home and the treating doctors.
This issue is a common one.
Out of the nation’s 15,630 nursing homes, one-fifth send 25 percent or more of their patients back to the hospital, according to a Kaiser Health News analysis of data on Medicare’s Nursing Home Compare website. On the other end of the spectrum, the fifth of homes with the lowest readmission rates return fewer than 17 percent of residents to the hospital.
Thursday, June 14, 2018
The Evolution of Email Scammers: Moving from Granny, to Granny's Lawyers and Financial Companies as Their Targets
In my Elder Protection Clinic days, I met with family members of older adults victimized by off-shore scammers. In one notable case, the older mother, normally a savvy woman about her personal finances, had succumbed to the flattery of someone posing as a financial advisor, who offered her various new "investments." He knew just how to work her, appealing to her "business acumen," using internet maps to learn about her neighborhood and thus to make it seem his office was in a building near her bank in a suburb of Pittsburgh. Even after her daughter, with the help of a legitimate financial advisor who caught the unusual activity on the mother's accounts, shut down any easy means of access to her mom, the mother continued to believe the perpetrator was just bad at financial advice, and not totally corrupt.
The elderly mother's judgment on who to trust was impaired, but the impairment was specific and hard to recognize because she otherwise functioned fairly well. The combination of the perpetrator's flattery, his appeal to her once-strong financial skills, and the fact that she was lonely, trapped in her house as her physical strength was waning, all contributed to the success of the scam. It all began with a single email.
A recent announcement by the FBI of a coordinated law enforcement effort to disrupt international scammers reveals how the scamming industry has evolved. The FBI explains:
Operation WireWire—which also included the Department of Homeland Security, the Department of the Treasury, and the U.S. Postal Inspection Service—involved a six-month sweep that culminated in over two weeks of intensified law enforcement activity resulting in 74 arrests in the U.S. and overseas, including 42 in the U.S., 29 in Nigeria, and three in Canada, Mauritius, and Poland. The operation also resulted in the seizure of nearly $2.4 million and the disruption and recovery of approximately $14 million in fraudulent wire transfers.
A number of cases charged in this operation involved international criminal organizations that defrauded small- to large-sized businesses, while others involved individual victims who transferred high-dollar amounts or sensitive records in the course of business. The devastating impacts these cases have on victims and victim companies affect not only the individual business but also the global economy. Since the Internet Crime Complaint Center (IC3) began formally keeping track of BEC [business e-mail compromise] and its variant, e-mail account compromise (EAC), there has been a loss of over $3.7 billion reported to the IC3.
BEC, also known as cyber-enabled financial fraud, is a sophisticated scam that often targets employees with access to company finances and trick them—using a variety of methods like social engineering and computer intrusions—into making wire transfers to bank accounts thought to belong to trusted partners but instead belong to accounts controlled by the criminals themselves. And these same criminal organizations that perpetrate BEC schemes also exploit individual victims—often real estate purchasers, the elderly, and others—by convincing them to make wire transfers to bank accounts controlled by the criminals.
Foreign citizens perpetrate many of these schemes, which originated in Nigeria but have spread throughout the world.
Law firms were among the most frequent targets of the scammers, who posed as clients to access funds held in the law firms' trust accounts. For more on the industry, read "It's Time to Stop Laughing at Nigerian Scammers -- Because They're Stealing Billions of Dollars," from the Washington Post.
June 14, 2018 in Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Cases, Federal Statutes/Regulations, International, Property Management | Permalink | Comments (0)
Monday, June 11, 2018
My good friend and colleague, Pennsylvania Elder Law Attorney Linda Anderson, has a thoughtful essay about her personal journey in elder law in a recent issue of GPSolo, the ABA journal for solo, small firm, and general practitioners. Her closing paragraphs address several core issues, comparing her elder law focus with traditional tax and estate planning concerns. I enjoyed her use of classic lines from the movie Jaws.
My early work with elder clients or their adult children across a variety of asset levels certainly involved tax and estate planning. But it became clear that serving and protecting these clients demanded more than just good lawyering, that good planning needed “a bigger boat.” It entailed comprehensive knowledge of the Social Security, Medicaid, and VA benefits bureaucracies, close engagement with insurance providers, geriatric care managers, social workers, and other professionals, as well as close monitoring of state and federal regulatory and policy changes and housing and age discrimination laws, among others. The eventual next step for me was completing the requirements to become a certified elder law attorney (CELA).
Solo or general practice attorneys do not have to become dedicated elder law experts when taking on clients seeking long-term care and funding planning. Take those clients, but be prepared to augment tax and estate planning expertise with a deep dive into areas of elder and special needs law and funding mechanisms. All this is doable, of course, but the biggest difference is in mindset. Attorneys often approach estate and long-term care planning as transactional or episodic--needs arise, documents are drafted or revised, and we and the clients move on. But the nature of the legal work I've touched on above demands a continuing, flexible outlook and a lot of homework. When in doubt, consult with or refer your client to a CELA-qualified attorney. These attorneys are listed in the website for the National Elder Law Foundation (NELF, nelf.org). Another resource for lawyers (who may or may not be CELA-qualified) is the National Academy of Elder Law Attorneys (NAELA, naela.org). Both organizations are excellent sources for information and referrals.
Finally, as we all learn in time, everything that we've covered here will become very personal for each of us. This may first happen through our parents or siblings as they transition and age, but it's necessarily part of our own futures as well. That's true whether you're a Baby Boomer looking at 70, a Gen Xer thinking that 40 is “old,” or any age in between.
Aging is the one shark we cannot escape. But as attorneys, we know how to plan and can build our clients' (and our own) “boats” to manage aging as well as possible.
June 11, 2018 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Legal Practice/Practice Management, Medicaid, Medicare, Property Management, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Thursday, June 7, 2018
A recent issue of the Michigan Bar Journal offers interesting practitioner perspectives on disability law and elder law issues. The January 2018 issue includes:
- Elder Bankruptcy
- Coordinating Representation: How Business and Elder Law Counsel Can Work Together to Meet Clients' Needs
- The Impact of Aging on Consumer Law
- The Intersection of Estate Planning, Family Law, and Elder Law
- Significant Regulatory Changes for Social Security Disability Insurance and Supplemental Security Income
- Considerations When Settling a Lawsuit for an Individual Lacking Legal Capacity or a Minor
Introducing the theme of the issue, attorney Christine Caswell writes:
While there may be a perception that the section focuses on helping clients qualify for public benefits, its mission is actually much broader. Elders and those with disabilities have many of the same issues as the rest of the population— divorce, consumer problems, bankruptcy, business ownership, and litigation—but these issues are magnified when questions arise concerning competency, the need for ongoing care, and discrimination. Moreover, these different legal areas may conflict when determining what is in the best long-term interests of these clients.
June 7, 2018 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Legal Practice/Practice Management, Medicaid, Medicare, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Tuesday, May 29, 2018
With hurricane season looming (it starts June 1), this notice about an upcoming webinar is particulary timely. The National Center on Law & Elder Rights has scheduled a free webinar for June 20, 2018 at 2 p.m. edt, Assisting Older Homeowners After a Natural Disaster. The announcement explains this about the webinar
Older adults face unique challenges and exhibit different vulnerabilities during and after a natural disaster. Older homeowners, for example, may need additional assistance securing their homes and moving out of a storm's path. Recovering from the disaster may also be a challenge for older adults on fixed or limited income. This free webcast will address both the practical challenges and resources available to aid older homeowners after a disaster. The discussion will highlight the loss mitigation and other options available to prevent mortgage foreclosure, and housing and other related assistance from FEMA. Closed captioning will be available on this webcast. A link with access to the captions will be shared through GoToWebinar’s chat box shortly before the webcast start time. Presenters: • Odette Williamson, Staff Attorney, National Consumer Law Center • Sapna Aiyer, Managing Attorney, Housing & Consumer Unit, Lone Star Legal Aid
Wednesday, May 16, 2018
Yesterday, May 15, 2018, was designated by the U.S. Senate as "National Senior Fraud Awareness Day." The reason for the day, according to the Congressional Record is "To Raise Awareness About the Increasing Number of Fraudulent Schemes Targeted At Older People of The United States, To Encourage The Implementation of Policies to Prevent These Scams From Happening, and to Improve Protections From These Scams For Seniors."
Senator Collins for herself and 4 other Senators, and introduced the resolution, S. Res. 506.
Here it is in its entirety:
Whereas, in 2017, there were more than 47,800,000 individuals age 65 or older in the United States (referred to in this preamble as ``seniors''), and seniors accounted for 14.9 percent of the total population of the United States;
Whereas senior fraud is a growing concern as millions of older people of the United States are targeted by scams each year, including the Internal Revenue Service impersonation scams, sweepstakes and lottery scams, grandparent scams, computer tech support scams, romance scams, work-at-home scams, charity scams, home improvement scams, fraudulent investment schemes, and identity theft; Whereas other types of fraud perpetrated against seniors include health care fraud, health insurance fraud, counterfeit prescription drug fraud, funeral and cemetery fraud, ``anti-aging'' product fraud, telemarketing fraud, and internet fraud;
Whereas the Government Accountability Office has estimated that seniors lose a staggering $2,900,000,000 each year to an ever-growing array of financial exploitation schemes and scams;
Whereas, since 2013, the fraud hotline of the Special Committee on Aging of the Senate has received more than 7,200 complaints reporting possible scams from individuals in all 50 States, the District of Columbia, and the Commonwealth of Puerto Rico;
Whereas the ease with which criminals contact seniors through the internet and telephone increases as more creative schemes emerge;
Whereas, according to the Consumer Sentinel Network Data Book 2017, released by the Federal Trade Commission, people age 60 years and older were defrauded of $249,000,000 in 2017, with the median loss to defrauded victims age 80 and older averaging $1,092 per person, more than double the average amount lost by those victims between the ages 50 and 59 years old;
Whereas senior fraud is underreported by victims due to embarrassment and lack of information about where to report fraud; and
Whereas May 15, 2018, is an appropriate day to establish as ``National Senior Fraud Awareness Day'': Now, therefore, be it
Resolved, That the Senate--
(1) supports the designation of May 15, 2018, as ``National Senior Fraud Awareness Day'';
(2) recognizes ``National Senior Fraud Awareness Day'' as an opportunity to raise awareness about the barrage of scams that individuals age 65 or older in the United States (referred to in this resolving clause as ``seniors'') face in person, by mail, on the phone, and online;
(3) recognizes that law enforcement, consumer protection groups, area agencies on aging, and financial institutions all play vital roles in preventing scams targeting seniors and educating seniors about those scams;
(4) encourages implementation of policies to prevent these scams and to improve measures to protect seniors from scams targeting seniors; and
(5) honors the commitment and dedication of the individuals and organizations who work tirelessly to fight against scams targeting seniors.
May 16, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Cases, Federal Statutes/Regulations, Other, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Tuesday, April 10, 2018
I've been struck by the contrast in two recent articles. The always wise Toby Edelman, senior policy attorney at the Center for Medicare Advocacy, was writing about Deregulating Nursing Homes. He begins:
In lockstep with the nursing home industry, the Trump Administration is rapidly dismantling the regulations and guidance that have been developed over the past 30 years to implement and enforce the federal Nursing Home Reform Law. Until the Christmas Eve 2017 report in The New York Times, these devastating changes, often made without any public notice or comment, received no public attention.
Toby reminds us that a "regulatory system is intended to prevent avoidable bad outcomes in the first place." But in his view, both the regulatory system and "the enforcement system .. . [are] under severe attack."
On the other hand, I just read an equally sincere essay authored by a long-term nursing home administer, entitled Why I Chose to Leave the Nursing Home Profession: A Fed-Up Executive's Story. She writes about her frustrations in trying to do the right thing for residents:
Regulations that are so prescriptive that they dictate the exact steps required to comply with the regulation create nothing but an assembly line of care — which is exactly what we are supposed to be fighting against.
I find it baffling that regulations require a facility to operate a “home-like” environment, but then sends surveyors into a facility to pick apart attempts to individualize care. For example, many residents wish to have one side of their twin bed up against a wall to create an increased sense of safety, as well as assist with bed mobility. Upon notification of a surveyor that this was a form of restraint, we had to “undo” the beds that were set up this way to avoid a citation for restraints.
Then that started the tedious process to evaluate the resident, obtain consent, revise the care plan and ensure that documentation from the staff addressed the continued need of the resident.
The paternalistic approach of “we know what is best for you” will only serve to solidify the Institutional care model that seems to be the chosen and preferred method for our societal approach to caring for the frail elderly.
This writer, Julie Boggess, most recently the CEO for Bethesda Rehab and Senior Care in Chicago, admits that "regulations are needed and should serve as the foundation of quality care and service." But, her final words are especially sobering:
But when things like a missing word in a policy or one missed temperature log recording or a date label that fell off a frozen bag of beans is more important than resident and family satisfaction and outcomes of care, there is a serious problem, and it is driving passionate hard-working individuals out of this industry.
The conclusion that propelled me out of this industry is that I, and my staff, were in the quest for quality and culture change alone. The government is nothing but an impediment. I thought the goal was to improve quality care, but if the real goal is to push out good people from the industry, then the government is wildly successful.
Lots to think about here.
April 10, 2018 in Consumer Information, Current Affairs, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, State Statutes/Regulations | Permalink | Comments (0)
Sunday, April 8, 2018
Here's an unusual case to start off a new week. In Laborer's Pension Fund v. Miscevic, the 7th Circuit faced interesting statutory interpretation questions about whether "survivor" benefits available under a murdered's man's pension must be paid to the very woman who killed him, his "surviving" wife.
The first question focused on ERISA's rules, asking whether the federal law (which does not contain "slayer" provisions) preempted any disqualifying effect of state slayer laws. Ultimately, considering the issue as a matter of first impression for federal appellate courts, the 7th Circuit rejected the ERISA preemption argument.
But that left the question of the effect of the Illinois law in light of additional, unique facts. The wife argued her state criminal court verdict of "not guilty by reason of insanity" barred the disqualifying effect of the Illinois slayer statute. The Court analyzed similar language of the Illinois slayer statute and the Illinois insanity law and concluded:
Put simply, an individual may not appreciate the criminality of her conduct, but still have "intentionally" and "unjustifiably" cased a death. Indeed, in this case, the judge at [the wife's] criminal trial made an explicit finding that [she] intended to murder [her husband] "without justification," despite concluding [she] was not guilty by reason of insanity."
Noting a split among state courts in analyzing the effect of "not guilty by reason of insanity" on entitlement to inheritance under other states' slayer laws, with Mississippi and New Jersey permitting recovery by a party deemed insane at the time of the murderous act, the 7th Circuit concluded that Illinois would not follow that path. The Court concluded that the Illinois slayer statute barred this wife from recovering her husband's pension benefits.
This case is interesting for reasons other than interpretation of the federal and state laws. The case was filed as an interpleader by the Pension Fund, as the Fund had received conflicting claims for survivor benefits from the wife and the couple's 11 year old daughter. The minor-aged daughter will now take the survivor benefits, but, the "minor child benefit" for the plan lasts only until the minor is 21. It is perhaps an unfortunate side effect of an already sad case that without the murderous facts, the wife would have been a survivor until her death, but the innocent (and, perhaps, needy) daughter's survivor benefits will terminate after 10 years. Should there be the option to treat any benefits payable to someone deemed "not guilty of murder by reason of insanity" as being subject to a constructive trust in favor of the next of kin?
My thanks to always eagle-eyed attorney Thomas Murphy in Phoenix, Arizona for sending the report on the 7th Circuit case, decided January 29, 2018.
Wednesday, March 28, 2018
From the Boston Globe, A Story That Raises Lots of Questions about Timeliness of VA Aid & Attendance Benefits
The Boston Globe has a lengthy article about one couple's struggle to get VA approval for Aid & Attendance pension benefits when they transferred from their own home to a nursing home. Oddly, the delays in approval appear to be tied, at least in part, to the contention that as both the husband and the wife were Marine veterans, the applications must be processed "simultaneously." Is that really true? Here are some of the key -- and often sad -- details of the family's struggle:
Moseley [an director at the couple's nursing home] said she placed several calls to the VA while Robert DiCicco [85 year-old husband] the listened from his wheelchair. Each call ended the same way — no approval, no update on where things stood, no firm information at all.
“I told them that these veterans could be homeless if it wasn’t for our home taking them in, and that they needed to be approved very soon,” Moseley said. “It wasn’t something that was very important to the VA. The disappointment that would come across his face was heartbreaking.” In her 35-year career, Moseley said, she has never handled a more difficult case involving the VA.
VA officials said the DiCicco case is complicated because, under law, pension claims for two married veterans must be processed simultaneously, and that [wife] Mary Lou DiCicco’s claim required additional, time-consuming verification of her military service.
The VA said that “regrettably, our efforts to establish entitlement resulted in delays.”
The agency needed only 59 days on average to resolve pension claims in February, including aid and attendance requests, the VA said. The overall goal is to resolve all claims, including disability and pension applications, within 125 days — a standard that was met 91 percent of the time in fiscal 2017, said James Blue, spokesman for the VA’s North Atlantic District.
But many veterans advocates and lawyers who work on VA claims said the process often can take 12 to 18 months. Lesa Jacob-Pollich, the veterans service officer for Saline County, where the DiCiccos live, said she watched helplessly while the family waited month after month for an answer.
For the full story, read For These Veterans, Dealing with VA Has Been A Relentless Fight, by Brian MacQuarrie for the Boston Globe, published March 24, 2018.